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Thompson v. Berryhill

United States District Court, W.D. New York

August 1, 2018

JEROME CARL THOMPSON Plaintiff,
v.
NANCY A. BERRYHILL,[1] Commissioner of Social Security, Defendant.

          LAW OFFICES OF KENNETH R. HILLER Attorneys for Plaintiff

          AMY C. CHAMBERS, of Counsel JAMES P. KENNEDY, JR. UNITED STATES ATTORNEY Attorney for Defendant

          FERGUS KAISER Special Assistant United States Attorney, of Counsel Federal Centre STEPHEN P. CONTE Regional Chief Counsel United States Social Security Administration Office of the General Counsel, of Counsel

          DECISION AND ORDER

          LESLIE G. FOSCHIO UNITED STATES MAGISTRATE JUDGE

         JURISDICTION

         On June 19, 2018, the parties consented, in accordance with a Standing Order (Dkt. No. 18), to proceed before the undersigned, pursuant to 28 U.S.C. § 636(c). (Dkt. No. 18-1). The court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). The matter is presently before the court on the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, filed by Plaintiff on October 5, 2017 (Dkt. No. 11), and by Defendant on December 29, 2017 (Dkt. No. 15). For the reasons discussed below, Plaintiff's motion is denied and the Commissioner's motion is granted.

         BACKGROUND AND FACTS

         Plaintiff Jerome Thompson (“Plaintiff”), brings this action pursuant to the Social Security Act (“the Act”), seeking review of the Acting Commissioner of Social Security (“the Commissioner” or “Defendant”) decision denying his application for disability benefits for Supplemental Security Income (“SSI”) benefits under Title II of the Act, and Social Security Disability Insurance (“SSDI”) benefits under Title XVI of the Act, together (“disability benefits”). Plaintiff, born on April 6, 1971 (R. 121), [2] alleges that he became disabled on September 28, 2013, when he stopped working as a result of a left leg injury. (R. 145).

         Plaintiff's application for disability benefits was initially denied by Defendant on January 24, 2014 (R. 74), and, pursuant to Plaintiff's request, a hearing was held before Administrative Law Judge Karen Wiedemann (“Judge Wiedemann” or “the ALJ”) on June 28, 2016, in Buffalo, New York, where Plaintiff, appeared pro se and testified at the hearing. (R. 8-27). Vocational expert (“VE”) Casey Crawford also appeared and testified. (R. 27-62). The ALJ's decision denying Plaintiff's claim was rendered on July 20, 2016. (R. 13-24). Plaintiff requested review by the Appeals Council, and on August 21, 2016, the ALJ's decision became Defendant's final decision when the Appeals Council denied Plaintiff's request for review. (R. 1-4). This action followed on March 30, 2017, with Plaintiff alleging that the ALJ erred by failing to find him disabled. (Dkt. No. 1).

         On October 5, 2017, Plaintiff filed a motion for judgment on the pleadings (“Plaintiff's motion”), accompanied by a memorandum of law (Dkt. No. 11) (“Plaintiff's Memorandum”). Defendant filed, on December 29, 2017, Defendant's motion for judgment on the pleadings (“Defendant's motion”), accompanied by a memorandum of law (Dkt. No. 15) (“Defendant's Memorandum”). Plaintiff filed a reply to Defendant's motion on the pleadings on January 23, 2018 (“Plaintiff's Reply Memorandum”) (Dkt. No. 17). Oral argument was deemed unnecessary.

         Facts pertinent to the review in this case include that on October 21, 2013, Plaintiff fractured his left tibia (shinbone) while wrestling with his cousin (R. 215, 219, 223). Upon admission to Niagara Falls Memorial Hospital, in Niagara Falls, New York, Donald Nenno, M.D. (“Dr. Nenno”), completed left tibial open reduction and internal fixation surgery. (R. 215-16, 219-27). Dr. Nenno advised Plaintiff that surgery was necessary to prevent future arthritis and that Plaintiff would have a varying degree of permanent disability based on the outcome of his surgery. (R. 223). Plaintiff received regular check-ups with Kathleen Ventry, ANP, a Nurse Practitioner (“Nurse Practitioner Ventry”) at Niagara Falls Memorial Primary Care Center (“NFMPCC”), from November 2013 until January 2016. (R. 228-36, 316-421). On November 14, 2013, an X-ray of Plaintiff's left knee showed no significant degenerative changes. (R. 277).

         On January 17, 2014, Donna Miller, D.O. (“Dr. Miller”), completed a consultative orthopedic examination of Plaintiff, noted that Plaintiff walked with a cane and exhibited a hesitant gait (R. 243-33), and diagnosed Plaintiff with post-surgical chronic left leg pain and opined that Plaintiff had a mild limitation to the ability to stand, walk, bend and kneel for prolonged periods of time. (R. 246).

         That same day, Janine Ippolito, Psy.D., (“Dr. Ippolito”), completed a consultative psychiatric evaluation on Plaintiff and noted that Plaintiff reported that he was let go after working for one day as a security guard and that no work “fits” him. (R. 238). Dr. Ippolito evaluated Plaintiff with the ability to follow and understand simple directions and instruction, perform simple tasks independently, maintain concentration and attention, maintain a regular schedule, learn new tasks, perform complex tasks independently and make appropriate decisions, with no significant limitations in Plaintiff's ability to function on a daily basis. (R. 241).

         On March 27, 2014, Richard Ahr, M.D. (“Dr. Ahr”), completed a post-surgical examination on Plaintiff and prescribed Gabapentin (pain) for a possible diagnosis of regional complex pain syndrome. (R. 257). That same day, Gail Stokoe, M.D. (“Dr. Stokoe”), reviewed an X-ray of Plaintiff's left knee that showed left knee osteopenia (lower than normal bone density) and osteoarthritis and well positioned surgical hardware. (R. 288).

         On April 28, 2014, Mohammad A. Khan, M.D. (“Dr. Khan”), a sleep specialist with Niagara Pulmonary & Sleep Medicine, P.C. (“NPSM”), completed a sleep apnea evaluation on Plaintiff who reported waking with loud snoring, tiredness, gasping arousals, and daytime symptoms of hypersomnia (excessive daytime sleepiness). (R. 405-06). Dr. Khan diagnosed Plaintiff with obstructive sleep apnea and recommended that Plaintiff lose weight and avoid drowsy driving. (R. 406).

         On May 9, 2014, Edward Ventresca, M.D. (“Dr. Ventresca”), completed a sleep study on Plaintiff, evaluated Plaintiff with an Epworth[3] scale rating of nine and diagnosed Plaintiff with severe obstructive sleep apnea. (R. 313).

         On May 29, 2014, Paul Phillips, M.D. (“Dr. Phillips”), completed an orthopedic evaluation on Plaintiff and noted that Plaintiff exhibited antalgic gait (walking pattern to alleviate pain), limited left knee range of motion (“ROM”), advised Plaintiff to wean using his cane, and referred Plaintiff for pain management treatment for possible regional complex pain syndrome of Plaintiff's left tibia. (R. 253, 255).

         Nurse Practitioner Ventry noted that Plaintiff was able to walk without a cane on December 19, 2014 (R. 362), and that Plaintiff reported no depression, anxiety, panic attacks, or frequent mood ...


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